FEDERAL COURT OF AUSTRALIA

Jensen v Repatriation Commission [2010] FCA 422

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     The principal question in this proceeding is whether the Administrative Appeals Tribunal (“the Tribunal”) took the correct approach in determining whether the applicant is entitled to an increase in the pension he receives pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).  The proceeding is an appeal from the Tribunal’s decision refusing to increase the pension.  The Tribunal affirmed a decision of the Veterans’ Review Board, dated 17 April 2007, which in turn affirmed a decision of the respondent to this appeal, the Repatriation Commission (“the Commission”), refusing to increase the rate of pension for the applicant.  The appeal is pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which limits such an appeal to a question of law.

The legislation

2                     Section 13(1) of the VE Act provides relevantly as follows:

Where:

...

(b)        a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

...

(d)        in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act.

3                     Section 14 of the VE Act makes provision for the making of a claim for a pension.  Section 15(1) provides that a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate was assessed or last assessed.  Section 19 provides for the determination of such claims and applications.  The provisions of s 19 relevant for present purposes are as follows:

(1)        Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:

...

(c)        subject to this section, determine an application under subsection 15(1) under subsection (5D) ...

(4A)     The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).

...

(5A)     If:

…

(b)        subsection (4A) applies in respect of an application under subsection 15(1) ...

(5B)     The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.

(5C)     The matters that the Commission must assess are:

(a)        the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b)        subject to subsection (6), the rate at which the pension is payable.

(5D)     After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.

...

(6)        Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

…

(9)        In this section:

application means an application made in accordance with section 15.

application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:

(a)        the day on which the claim or application was received at an office of the Department in Australia; or

(b)        if subsection 20(2) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.

assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.

4                     Section 22 makes provision for what is called the general rate of pension and for an extreme disablement adjustment.  Sections 23 and 24 provide respectively for the intermediate rate of pension and the special rate of pension.  Section 23 provides relevantly:

(1)        This section applies to a veteran if:

(aa)      the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)    the veteran had not yet turned 65 when the claim or application was made; and

(a)        either:

(i)         the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)        the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)        the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)        the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and

(d)        section 24 or 25 does not apply to the veteran.

(2)        Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a)        if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b)        in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3)        For the purpose of paragraph (1)(c):

(a)        a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:

(i)         if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

(ii)        if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii)       if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

(b)        where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

5                     Section 24 provides relevantly:

(1)        This section applies to a veteran if:

(aa)      the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)    the veteran had not yet turned 65 when the claim or application was made; and

(a)        either:

(i)         the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)        the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)        the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c)        the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d)        section 25 does not apply to the veteran.

(2)        For the purpose of paragraph (1)(c):

(a)        a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)         the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)        the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)        where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

The facts

6                     The following is a summary of the facts found by the Tribunal in its reasons for decision.  The applicant has war-caused disabilities of alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, gastro-oesophageal reflux disease, solar keratoses and asthma.  He is entitled to a disability pension at 100% of the general rate.  He was born on 7 June 1949.  He served in the Australian Army and rendered operational service from 9 July 1970 to 8 July 1971. 

7                     Both before and after his military service, the applicant was employed as a bank clerk with the Commonwealth Bank.  He was then promoted through various positions up to manager level in branches of the bank.  In 1994, he was offered and accepted a redundancy package. 

8                     The applicant’s evidence to the Tribunal was that, throughout his service with the bank after his war service, he drank excessively, both at lunch time and in the evening, but his drinking did not create any major problems with the bank.  He had some exchanges with his regional manager about his drinking, but the applicant argued that he obtained business for the bank at the hotel.

9                     In 1994, the applicant’s wife was operating a post office sub-agency.  With the proceeds of his redundancy package, the applicant purchased an adjoining shop and established a card and gift shop business, which was combined with his wife’s existing business.  His evidence was that this did not succeed as he continued drinking heavily, slept through the mornings, and was away from the shop for much of the time.  The Tribunal found that he had little or no active involvement in the business after 1995, although he took money from the cash register as he needed it.  The business was subsequently sold.  There was some conflict in the evidence about the date of the sale. 

10                  The applicant made no apparent effort to engage in work until March 2004, when he was appointed as an office administrator by a construction company.  This lasted for some two months.  The applicant identified two problems that led to this period of employment being so short.  The first was his inability to process the company’s records on computer, because he lacked the necessary skills.  The second was that his drinking interfered with his work. 

11                  In early 2005, the applicant entered into an arrangement with a financial services provider, whom he met at a hotel.  The arrangement was for the applicant to receive a commission on referrals of clients.  The applicant said that he did not get any leads, because he was not able to provide instant approval for loans (as he had with the bank), and no income was generated.  Later in 2005, he entered into a similar arrangement with a firm that arranged loans for equipment.  The arrangement was terminated because of the same problem.  Still later in 2005, the applicant was employed by another company as a bookkeeper.  Again, he was unable to cope because of his computer illiteracy and his drinking.  All of these short-term employment opportunities came about through contacts he met at a hotel.  There was no evidence of any organised or specific effort to obtain employment.

12                  In May 2007, the applicant’s son, who operates a financial services business, asked the applicant to work in the business.  His son regarded the applicant as an outgoing character, good at networking, who knew a lot of potential clients and had 27 years’ experience in the banking industry.  He wished to keep the applicant occupied during the day and limit his opportunities to drink.  In a written statement dated 15 October 2008, the son said that the applicant worked three hours per day five days a week.  In oral evidence at the Tribunal’s hearing, the son said that the applicant averaged about eight hours per week, which was less than he had worked previously.  He said that he asked the applicant to be in at 10.00 am, but could not rely on him complying, with the applicant frequently turning up after lunch.  The applicant had done a course as a prerequisite to becoming accredited as a financial adviser, but had not proceeded with accreditation.  He had done a short course in insurance products and was an authorised representative of a company offering loan protection insurance.  The son said that the applicant’s concentration levels were not good.

13                  In a written statement dated 14 May 2008, the applicant said that, in working for his son, there was little pressure and he could work approximately two hours per day about three days per week.  In his oral evidence to the Tribunal he said that he worked three hours per day five days per week.  He thought that he had worked those hours regularly for at least a year.  He said he could cope with that and was better not drinking all day.  He would like to feel that he could work full-time but was unsure whether he had the skills for a steady full-time job, with alcohol still a problem.

14                  There was medical evidence from Dr Castle (an occupational physician) and from Mr Burge (a clinical psychologist).  In Dr Castle’s initial report, dated 8 February 2008, he expressed the view that the applicant was unable to work for more than eight hours per week, but this was not solely due to his accepted disabilities.  In part, it was due to the adoption by the applicant of a comfortable lifestyle that involved his drinking.  Subsequently, having learned of the applicant’s employment with his son, Dr Castle expressed the opinion that the applicant was able to work 15 hours a week for his son, but would not be able to work any more than that and would not be able to work in open employment, because most workplaces would not tolerate alcohol abuse.  At that stage, Dr Castle considered that the applicant’s inability to work was the consequence of his alcohol dependence or abuse and the cognitive decline this had caused.  In a report dated 9 February 2008, Mr Burge expressed the opinion that, due to his alcohol abuse, the applicant was unlikely to be able to maintain employment.  He referred to increasing difficulties with memory and concentration.  He pointed out that a workplace accommodating drunken employees was highly unlikely.  In his oral evidence, Mr Burge accepted that the applicant had not mentioned his work for his son, but said there was likely to be a higher tolerance of the alcohol problems by a son than by any independent employer. 

The Tribunal’s reasons for decision

15                  At [13] of his reasons for decision, the senior member constituting the Tribunal set out subss (1) and (2) of s 24 of the VE Act.  At [14], he said that s 23 “is in virtually identical terms but applies where the veteran is incapable of undertaking work for more than 50 per cent of the time ordinarily worked by persons engaged in work of that time or more than 20 hours per week.”  At [15], the senior member found that the applicant had been working at least 15 hours per week on a regular basis and continued to do so.  He therefore failed to satisfy the criterion in s 24(1)(b), but met the requirement of s 23(1)(b), because he was incapable of undertaking remunerative work for more than 20 hours per week.  At [16]-[17], the senior member said:

Having arrived at that conclusion, it is necessary to consider s 23(1)(c) the wording of which is virtually identical to s 24(1)(4).  Sub-section (1) of s 23 is virtually identical to sub-section (2) of s 24.  It is clear that prior to 1984 he had been a full time employee of the Commonwealth Bank for some 23 years after his operational service.  I am satisfied that he ceased to be engaged in that remunerative work that he was undertaking for reasons other than his incapacity from his war-caused injury or disease.  The evidence of Mr Jensen was clear.  He applied for and was offered a redundancy package together with many other employees in 1994.  At the time he was in disagreement with some of the bank’s policies.  While he may have been drinking excessively, this had not created any major problems with the bank.  He said that, if not for the redundancy package, he believed that he could have continued with the bank, likely until retirement.  At the time it is clear that the redundancy package suited Mr Jensen, providing him with a substantial lump sum with which the property adjoining his wife’s existing business could be purchased to expand that business.

From the evidence of Mr Jensen it would seem more likely than not that Dr Castle was correct in his view that Mr Jensen then adopted what, for him, was a comfortable lifestyle.  It was clear that there was both conflict with his wife in relation to the business and a failure by Mr Jensen to be able to carry out a role in the business which he had envisaged in 1994.  This failure, in my view, was unlikely to have been the result of his alcohol problem alone.  Subsequent to his ceasing direct involvement in the business, it could not be said that he was genuinely seeking to engage in remunerative work.  Each of his abortive attempts resulted from meeting someone at the hotel and being offered either employment or commission for referring clients.  Mr Jensen was clear that the commission opportunities failed because of his inability to provide instant loan approval.  The two short term employment opportunities failed as much a result of his inability to perform the work required with no computer skills as his drinking problem.

16                  At [18], the senior member concluded that the applicant did not meet the requirements of either s 23 or s 24 of the VE Act to qualify for the intermediate rate or the special rate of pension. 

The grounds of appeal

17                  In addition to his notice of appeal, the applicant filed what was described as a supplementary notice of appeal.  No issue was taken about his reliance on grounds stated in the supplementary notice of appeal, even though he had not sought or been granted leave to file an amended notice of appeal, and the supplementary notice of appeal did not comply with the rules of court relating to amended documents.

18                  The grounds of appeal may be summarised as follows.  In the ground designated as 4.1, it was alleged that the Tribunal failed to take into account relevant considerations.  Those considerations were described as: relevant remunerative work that the applicant was undertaking within the meaning of s 23(1)(c) of the VE Act; whether by reason of his war-caused conditions, the applicant was prevented from continuing to undertake remunerative work; whether the war-caused conditions alone prevented the applicant from continuing to undertake that work; and whether the applicant therefore suffered a loss of wages or salary.  It was said that all of these considerations should have been taken into account in relation to the assessment period.  In ground 4.2, it was said that, by failing to take into account those relevant considerations, the Tribunal was precluded from considering properly the requirements of s 23(1)(b), s 23(2)(b), s 23(1)(c) and s 23(3)(a)(iii) of the VE Act.  Ground 4.3 alleged that the Tribunal erred in extrapolating the criteria in s 24 and applying them to s 23 of the VE Act.  This was explained as: a failure to take into account the applicant’s capacity for part-time or intermittent employment and whether there was a reduction in that capacity attributable to the war service, with a consequent loss of salary or wages; a failure to examine the impact of the applicant’s continuing employment in satisfaction of the requirements of s 23; and a failure to analyse the significance of the employment for the purposes of s 23(1)(c) and s 23(1)(a)(iii).  Ground 4.4 alleged a failure to consider the “ameliorating provisions” of s 23(3)(b) “in circumstances where the applicant continued to seek to engage in remunerative work and was employed and prevented from continuing to undertake the full scope of the remunerative work because of the substantial impact of war related disabilities.”  Ground 4.5 alleged a failure to give adequate reasons for the Tribunal’s decision, by failing to set out material findings on questions of fact in relation to the work the applicant was engaged in during the assessment period, or the evidence on which those findings were based. 

Relevant considerations and the provisions of the VE Act

19                  The task of the Tribunal was to apply the criteria in ss 23(1) and 24(1) of the VE Act to the facts of the applicant’s case as it found them.  A failure to do so would amount to an error of law and would entitle the applicant to succeed in this appeal.  The criteria laid down in each of s 23(1) and s 24(1) are cumulative, however.  The Tribunal’s conclusion that the applicant did not satisfy any one of the criteria in s 24(1) led necessarily to the result that the applicant was not entitled to pension at the special rate.  Similarly, the conclusion of the Tribunal that the applicant did not satisfy any one of the criteria in s 23(1) led necessarily to the result that the applicant was not entitled to pension at the intermediate rate.

20                  The Tribunal did conclude in [15] of its reasons for decision that the applicant did not satisfy the criterion in s 24(1)(b).  The Tribunal’s finding that the applicant was capable of undertaking remunerative work for 15 hours or more per week led to the conclusion that he was not incapable of undertaking remunerative work for periods aggregating more than eight hours per week.  It followed that the applicant could not qualify for pension at the special rate.  Similarly, the Tribunal concluded in [16] and [17] of its reasons for decision that the applicant did not satisfy the criterion in s 23(1)(c).  He could not satisfy the “alone” test required by that paragraph, in light of the Tribunal’s findings that he had ceased his remunerative work with the Commonwealth Bank for reasons other than his incapacity from his war-caused conditions.  Nor was the applicant prevented by his war-caused conditions alone from conducting the business he established in conjunction with his wife’s business.  His lifestyle choice, conflict with his wife in relation to the business and his failure to carry out the envisaged role in that business all played a part.  The applicant’s other short-term jobs were brought to an end because of factors that included the absence of any authority to provide instant loan approval and the applicant’s lack of computer skills.  Because the applicant failed the “alone” test in s 23(1)(c), it followed that he was not entitled to pension at the intermediate rate.

21                  In those circumstances, it was unnecessary for the Tribunal to proceed to examine in detail whether the applicant was able to satisfy any of the other criteria in s 23(1) or s 24(1).  A determination favourable to the applicant in relation to any one of those criteria could not have brought about the result that he would have been entitled to pension at the intermediate rate or the special rate, because he could not satisfy all criteria.  Much of the applicant’s case in this appeal is based on the proposition that the Tribunal should have applied all of the criteria in s 23(1) and all of the criteria in s 24(1) to the applicant’s case.  Counsel for the applicant asserted that, by failing to undertake this exercise, the Tribunal was failing to take into account relevant considerations and failing to apply the provisions of the Act.  These arguments must fail.  As I have said, application of the remaining criteria could not have resulted in a decision in the applicant’s favour.

22                  Counsel for the applicant submitted that, when applying s 23(1)(c) of the VE Act, the Tribunal had failed to take into account the period of employment of the applicant by his son.  The Tribunal certainly did not address the question whether the applicant was prevented from continuing to undertake that work because of his war-caused conditions alone.  It did not address this question for the very good reason that it found that the applicant was continuing to undertake remunerative work for his son.  That work could not have been “remunerative work that the veteran was undertaking” for the purposes of s 23(1)(c) if the applicant continued to undertake it.  Nor could the Tribunal have determined that the applicant was prevented from continuing to undertake that work, whether by his war-caused conditions or by any other factor, if he was not prevented from undertaking it at all, but was continuing to do so.  The applicant’s argument in this respect does not have any foundation in the terms of the provision of the VE Act that it invokes. 

23                  Counsel for the applicant also submitted that the Tribunal failed to apply s 23(3)(a)(iii) of the VE Act.  He identified this provision as the crucial difference between ss 23 and 24, because s 24(2)(a) of the VE Act contains no equivalent.  The argument is mystifying.  Section 23(3) contains provisions that instruct the decision-maker how the “alone” test in s 23(1)(c) is to be applied.  Section 23(1)(a) contains three specific situations in which a veteran who satisfies s 23(1)(b) is nonetheless taken not to satisfy s 23(1)(c).  The third of those, in s 23(3)(a)(iii), requires the decision-maker to find that a veteran does not satisfy the “alone” test in s 23(1)(c) if there are reasons other than that veteran’s war-caused condition that have caused the veteran to engage in remunerative work on a part-time basis or intermittently.  It is hard to see how the application of the criterion in s 23(3)(a)(iii) to the process of determining whether the applicant met the “alone” test in s 23(1)(c) could have assisted the applicant.  The Tribunal found that it was not the applicant’s war-caused conditions alone that prevented him from continuing to undertake any remunerative work that he had been undertaking.  A finding that it was those war-caused conditions, and no other reason, that caused the applicant to engage in remunerative work on a part-time basis would have been inconsistent with all of the Tribunal’s other findings.  It would have been perverse in the circumstances.

24                  There was also a suggestion that the Tribunal had failed to apply s 23(2)(b) of the VE Act.  Again, this is a strange argument.  The Tribunal found that the applicant satisfied the criterion in s 23(1)(b).  That is to say, the Tribunal found that the applicant’s incapacity from war-caused conditions, alone, prevented him from undertaking work otherwise than on a part-time basis.  Section 23(2) sets out the circumstances in which a veteran is not to be taken as having fulfilled the criterion in s 23(1)(b).  In making its determination that the applicant did fulfil that criterion, the Tribunal applied s 23(2)(b).  Indeed, the Tribunal might be criticised for having failed to consider s 23(2)(a).  It seems to have assumed that the time ordinarily worked by persons engaged in work of the kind the applicant was doing on a full-time basis would be 40 hours or less, and therefore simply have applied the 20 hour maximum.  The likelihood is that the Tribunal did this because of the absence of evidence that would enable it to make any finding about the time ordinarily worked by persons engaged in work of that kind.  In any event, having been the beneficiary of a Tribunal finding favourable to him under s 23(1)(b), the applicant cannot be heard to complain that the criteria for making that finding were either not applied, or were misapplied.  The Tribunal did take into account the applicant’s reduced capacity to work by reason of his war-caused conditions alone, and therefore found that the applicant satisfied the criterion in s 23(1)(b), but went on to find that the applicant failed to satisfy the criterion in s 23(1)(c).  This finding was fatal to the applicant’s case. 

Comparing s 23 and s 24

25                  It is true that the Tribunal’s comparison of s 23 with s 24 was of a broad nature.  The Tribunal did not either set out the relevant provisions of s 23 in full, or catalogue all of the differences between those provisions and the provisions of s 24.  Nevertheless, the Tribunal did refer to the relevant differences.  In terms of the provisions it applied to the applicant’s case, the Tribunal’s comparison was unexceptionable.  The limited comparison produced no error of law that could be of any benefit to the applicant.

The “ameliorating” provisions

26                  Counsel for the applicant argued that the Tribunal ought to have applied what he called the “ameliorating” provisions of s 23(3)(b) of the VE Act.  That paragraph, in its terms, applies in the case of a person “who has not been engaged in remunerative work”.  I take the view that the paragraph has no application to a person who has been engaged in remunerative work after completing war service, but only to someone who has not been able to work at all.  Compare the reasoning in Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 at [19]-[26] and Baljas v Repatriation Commission [2009] FCA 171 at [20], in relation to the equivalent provision in s 24(2)(b) of the VE Act.  Because the Repatriation Commission has been prepared to accept that the provisions are “ameliorating” in the case of someone who has been engaged in remunerative work, I have been prepared to take into account the provisions. 

27                  In the present case, it is extremely difficult to describe the applicant as a person who has not been engaged in remunerative work.  As the Tribunal found, the applicant continued to be engaged in such work at the time the Tribunal dealt with the case.  In any event, the Tribunal’s finding, at [17] of its reasons for judgment, that it could not be said that the applicant was genuinely seeking to engage in remunerative work after leaving the Commonwealth Bank is sufficient to preclude the application of s 23(3)(b). 

The adequacy of the Tribunal’s reasons

28                  Counsel for the applicant contended that the Tribunal had not complied with its duty under s 43(2) and (2B) of the AAT Act, because its reasons did not include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.  It is difficult to separate this submission from the submissions alleging the failure of the Tribunal to address provisions of the VE Act.  In part, counsel for the applicant was suggesting that the Tribunal ought to have made more findings than it did.  To the extent to which the Tribunal did make findings, its reasons are expressed perfectly adequately to comply with its statutory duty.  The relevant findings are set out, as is the evidence or other material on which they are based.  The Tribunal’s reasoning is disclosed sufficiently to enable the reader to understand how it reached its conclusion.

Conclusion

29                  The applicant has failed in respect of all grounds on which he sought to overturn the Tribunal’s decision.  The appeal must be dismissed.  No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied.  The
application of that principle leads to the conclusion that the applicant should be ordered to pay the Commission’s costs of the appeal.

Associate:

Dated:         5 May 2010